Luck v University Of Southern Queensland And Anor; Luck v Chief Executive Officer Of Centrelink And Anor; Luck v Secretary Department Of Human Services And Ors; Luck v Chief Executive Officer Of Centrelink (Freedom...

[2015] HCATrans 125

[2015] HCATrans 125

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M49 of 2015

No M53 of 2015

B e t w e e n -

GAYE LUCK

Applicant

and

UNIVERSITY OF SOUTHERN QUEENSLAND

First Respondent

CHIEF EXECUTIVE OFFICER OF UNIVERSITY OF SOUTHERN QUEENSLAND

Second Respondent

Office of the Registry
  Melbourne  No M50 of 2015

B e t w e e n -

GAYE LUCK

Applicant

and

CHIEF EXECUTIVE OFFICER OF CENTRELINK

First Respondent

SECRETARY OF DEPARTMENT OF HUMAN SERVICES

Second Respondent

Office of the Registry
  Melbourne  No M51 of 2015

B e t w e e n -

GAYE LUCK

Applicant

and

SECRETARY DEPARTMENT OF HUMAN SERVICES

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ADMINISTRATIVE APPEALS TRIBUNAL DEPUTY PRESIDENT SA FORGIE

Third Respondent

Office of the Registry
  Melbourne  No M52 of 2015

B e t w e e n -

GAYE LUCK

Applicant

and

CHIEF EXECUTIVE OFFICER OF CENTRELINK (FREEDOM OF INFORMATION PRINCIPAL OFFICER)

Respondent

Applications for stay

NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 19 MAY 2015, AT 2.15 PM

Copyright in the High Court of Australia

____________________

MR B. PETRIE:   May it please the Court, I appear for the respondents in proceedings M49 of 2015 and M53 of 2015.  (instructed by Clayton Utz Lawyers)

MS Z.E. MAUD:   If the Court pleases, I appear for the respondents in proceeding M50, for the first respondent in proceeding M51 and for the respondent in proceeding M52.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Madam Registrar, it is not expected that Ms Luck will be here, is it?  No.  Thank you.  Mr Petrie and Ms Maud, you have probably seen, as I have seen, that Ms Luck has indicated that she has no intention of presenting today because she says she is unwell.  I have also got some paperwork recently which suggests that you have reached some sort of rapprochement whereby the Federal Circuit Court proceeding will be adjourned until September and the Full Federal Court hearing will be adjourned until the hearing and determination of the special leave application.  Is that the position?

MR PETRIE:   They are the orders sought by the applicant.  They are not orders that my clients have consented to.  The position is, your Honour, that the two proceedings that Ms Luck has sought to be removed to this Court, the first being the Federal Court appeal proceeding, that is likely to be heard currently in the sitting period of 3 August through to 25 August.  The Federal Circuit Court proceeding which concerns a creditor’s petition is listed for hearing this Thursday on 21 May.  My client had sought Ms Luck’s consent to adjourn the Federal Circuit Court proceeding to 1 September.  Ms Luck was not willing to consent on those bare terms.  She sought additional qualifications which my client was not willing to consent to.

HIS HONOUR:   So in the result there is no agreement?

MR PETRIE:   That is right, your Honour.

HIS HONOUR:   There is still just Ms Luck’s applications and yours and Ms Maud’s resistance to them.

MR PETRIE:   That is correct.  I can foreshadow, however, that my client has instructed us to seek an adjournment of the creditor’s petition that is listed for this Thursday through to the earliest date after 1 September by which stage it is hoped that the Federal Court proceedings would have been heard and hopefully determined.  Just by way of background, your Honour, those Federal Court proceedings, as you may have seen from the affidavit ‑ ‑ ‑

HIS HONOUR:   Justice Davies’ orders, are they not, refusing to set aside the bankruptcy note?

MR PETRIE:   That is right.  Those proceedings are related, so that is the reason my client will be seeking an adjournment through to after 1 September.

HIS HONOUR:   Are you moderately confident that the Full Federal Court hearing will take place by 1 September?

MR PETRIE:   Your Honour, the Federal Court has provided some procedural directions.  If I could ‑ ‑ ‑

HIS HONOUR:   Certainly.

MR PETRIE:   ‑ ‑ ‑ read them alive from Mr Murano’s affidavit?  I am not sure if your Honour has that in front of you.

HIS HONOUR:   Yes, thank you.

MR PETRIE:   Now, I understand your Honour may not have a numbered or paginated copy of that affidavit.  I do have one handy if that would be of ‑ ‑ ‑

HIS HONOUR:   No, it is all good, thank you.

MR PETRIE:   Okay.  On page 60 of that affidavit, your Honour, you will – sorry, I should say pages 59 to 60 there are procedural orders made by Justice Beach dated 4 May 2015, and at Order 9 his Honour ordered that:

The appeal be listed for hearing before a Full Court in Melbourne on a date to be fixed but no later than the Full Court sitting period of 3 to 25 August 2015.

So on that basis my client is confident that the appeal will be heard before 25 August at the latest.

HIS HONOUR:   So you will seek an adjournment from the Federal Circuit Court until 1 September or thereafter.  Is Ms Luck agreeable to that?

MR PETRIE:   Not on those bare terms.  She was apparently willing to consent to an adjournment pending an unrelated special leave proceeding before this Court, but also concerning my client also being dealt with and, as I understand it, the removal application also before the Court being dealt with.

HIS HONOUR:   Right.  Well, there is a host of other matters there, including judicial review applications which are set down apparently to be heard by Justice Tracey in the Federal Court, some of which concern your client and some of which concern other parties.  There appear to be applications for stay on foot for those also, pending the hearing and determination of the special leave application.

MR PETRIE:   Yes.

HIS HONOUR:   What is the position in relation to those?  Are they opposed?

MR PETRIE:   I can indicate that those applications, to the extent they concern my client, have not yet been determined.  The Federal Court application filed by Ms Luck concerns – I am sorry ‑ she seeks an order to stay or adjourn the Federal Circuit Court proceeding.  My client will be agreeable to that but as I have said it is likely that that matter will be adjourned in any event on this Thursday.  As to the status of the other applications that do not concern my client, I am not in a position to say.

HIS HONOUR:   So what does your client seek today?

MR PETRIE:   My client does not oppose in principle the underlying proceedings being stayed, provided that the adjournment does not interfere with the timetable that has effectively already been set down by the Federal Court and, as I said, the Federal Circuit Court proceeding which is likely to be adjourned.  With that in mind, one way perhaps to accommodate all parties is for the removal applications to be heard and determined prior to 3 August.  I understand I may be asking a bit much of this Court to do that but, as I said, that is one way in which all parties could be accommodated.

HIS HONOUR:   When you say the removal application you mean the removal application of all of the proceedings of which Ms Luck seeks removal or just one?

MR PETRIE:   Well, proceedings M49 and M53, at least, which are the proceedings that concern my client.  But if those applications can be heard and determined prior to the Federal Court sitting period, then my client would be amenable to an adjournment of those proceedings to that date.

HIS HONOUR:   Why do you want them heard by 3 August?

MR PETRIE:   Because that is the commencement of the Federal Court sitting period during which it is likely that the Federal Court will hear Ms Luck’s appeal.

HIS HONOUR:   I see.  Am I right in saying that the only thing of any real urgency at the moment is the Federal Circuit Court bankruptcy petition?

MR PETRIE:   That is right, your Honour.

HIS HONOUR:   All of the other things, the matters before Justice Tracey at first instance and before the Full Federal Court in the case of matter M49, are still some way off?

MR PETRIE:   Yes.  Well, M49 concerns the Federal Court proceeding.  That proceeding has not yet been set down for a hearing.

HIS HONOUR:   But it will be in late August?

MR PETRIE:   In all likelihood, yes.

HIS HONOUR:   All right.  Ms Maud, what is your client’s position?

MS MAUD:   Your Honour, my client’s position is that it opposes the application for a stay in each of the matters.  The circumstances in the matters are different.  M50 is a proceeding that has already been heard before his Honour Justice Tracey and is currently reserved.

HIS HONOUR:   Before whom?

MS MAUD:   His Honour Justice Tracey.

HIS HONOUR:   Yes.

MS MAUD:   That was heard on 27 and 28 April.

HIS HONOUR:   Yes.

MS MAUD:   His Honour did, before hearing the substantive matter, hear an application for a stay because of the removal application and he refused that application and proceeded to hear the substantive matter.

HIS HONOUR:   What is it, a judicial review application?

MS MAUD:   Yes, it is, your Honour.

HIS HONOUR:   What is the decision sought to be reviewed?

MS MAUD:   In relation to a decision of the Chief Executive Officer of Centrelink to – back in 2008 to limit the circumstances in which Ms Luck could contact Centrelink.

HIS HONOUR:   A decision made in 2008?

MS MAUD:   Yes, and it only operated for a period of three months; it is long since lapsed.

HIS HONOUR:   Was the application for review made within time or was some extension granted?

MS MAUD:   The original application concerned three decisions and an objection was taken to competency of two of those which were not filed within time, but one was, and that is the decision that has already been heard by his Honour Justice Tracey.

HIS HONOUR:   All right.  What about M51?

MS MAUD:   M51 is listed for hearing before the Full Federal Court this Thursday.  Her Honour Justice Mortimer has granted leave to the applicant in relation to five grounds in that matter and my client has filed submissions in that, and we have also filed submissions pursuant to a direction of her Honour Justice Mortimer as to whether or not the appeal should be stayed, and the Full Court has indicated that it will determine that issue on Thursday and the ultimate hearing of the appeal may or may not proceed, depending on the outcome of that application.

HIS HONOUR:   What is the nature of that proceeding, judicial review again?

MS MAUD: That is an application ‑ leave was granted from his Honour’s decision refusing an appeal under section 44 of the Administrative Appeals Tribunal Act.

HIS HONOUR:   Yes, Justice Tracey again, I take it, was it?

MS MAUD:   Yes, your Honour.

HIS HONOUR:   So this is an appeal from Justice Tracey to the Full Federal Court?

MS MAUD:   Yes, your Honour.

HIS HONOUR:   Thank you.  As best you know, the Full Federal Court will determine next Thursday whether that proceeding should be stayed?

MS MAUD:   This Thursday, yes.

HIS HONOUR:   Yes.  That is stayed – what, pending the determination of the special leave application?

MS MAUD:   Also the removal application, yes.

HIS HONOUR:   The removal.  What about M52?

MS MAUD:   That concerns the appeal in VID898 in the Full Federal Court, which is also listed for hearing this Thursday and, again, her Honour

Justice Mortimer made a direction that the parties file submissions as to whether or not that appeal proceeding should be adjourned or stayed because of the special leave application and the removal application that has also been made in relation to that matter.

HIS HONOUR:   I see, just bear with me a moment.

MS MAUD:   Yes, your Honour.

HIS HONOUR:   There was some new paperwork came in today from Ms Luck ‑ an interlocutory application which has not yet been filed but refers to – in addition to matter 737 of 2015 to some other matters of which I have seen no indication in the papers elsewhere - VID61 of 2015, BN17780 of 2015 and VID899 of 2008.  Do you know anything of those?

MS MAUD:   Your Honour, we have not seen the paperwork and the proceeding IDs are not recognisable to me.

HIS HONOUR:   Do not ring a bell.

MS MAUD:   No.

HIS HONOUR:   All right.  Thank you.

MR PETRIE:   Your Honour, I may be able to assist with that.  I can say that we have not seen the paperwork either, but I believe those proceedings are referred to and explained briefly in Mr Murano’s affidavit.  Paragraph 4 goes to proceeding VID61 of 2015, as does ‑ ‑ ‑

HIS HONOUR:   That is another bankruptcy notice, is it?

MR PETRIE:   Yes.

HIS HONOUR:   I see.

MR PETRIE:   Yes, that is the only one, I am instructed, your Honour, of which we are ‑ ‑ ‑

HIS HONOUR:   Is that more costs orders for other proceedings?

MR PETRIE:   I believe that is the initial judgment of Justice Davies, for which Ms Luck has now sought appeal to the Full Bench.

HIS HONOUR:   I am sorry, VID61 – I see.  Just bear with me, I am not sure that that is right.  In matter M49 of 2015 the application is removal of this Court of proceeding VID61, but that proceeding is over, VID61. 

Justice Davies brought it to an end with her judgment.  It is still sought to remove it here, is it?

MR PETRIE:   Ms Luck’s application could be read that way, your Honour, yes.

HIS HONOUR:   I see.  Thank you.

The applicant, Ms Luck, has filed a number of applications seeking removal to this Court pursuant to section 40 of the Judiciary Act 2003 (Cth) of a number of proceedings pending in the Federal Court of Australia and one which is pending in the Federal Circuit Court and that they be consolidated with her application for special leave to appeal from the judgment and orders of the Full Federal Court in Federal Court proceeding VD189 of 2015.

The proceedings of which Ms Luck seeks removal to this Court are as follows:  first, Federal Court proceeding VID1158 of 2015, which is an appeal to the Full Federal Court from orders of her Honour Justice Davies made on 30 March 2015, dismissing Ms Luck’s application to set aside a bankruptcy notice which the first respondent, University of Southern Queensland, served on her on 15 January 2015; secondly, Federal Court proceeding VID488 of 2008, which is intituled Luck v Chief Executive Officer of Centrelink, VID56 of 2010, Luck v Secretary, Department of Human Services, and VID444 of 2008, Luck v Deakin University, which are applications for judicial review listed to be heard before Justice Tracey in the Federal Court evidently within the relatively near future; thirdly, Federal Court matter VID512 of 2014 which is an appeal to the Full Federal Court from orders of his Honour Justice Tracey made on 30 July 2014 to set down matters VID488 of 2008, VID56 of 2010 and VID444 of 2008 for hearing before his Honour; fourthly, Federal Court matter VID898 of 2015, which is a judicial review application which is set down for hearing before Justice Tracey within the – has been dealt with?

MS MAUD:   No, pardon me, your Honour - VID898 is one of the appeals which is listed before the Full Court this Thursday, and that is ‑ ‑ ‑

HIS HONOUR:   From Justice Tracey?

MS MAUD: ‑ ‑ ‑ also an appeal from his Honour Justice Tracey in relation to what are really just directions made by the Administrative Appeals Tribunal, and his Honour Justice Tracey found that the appeal was incompetent because there was not a decision under section 44 of the Administrative Appeals Tribunal Act so there was not – it was not capable of being appealed under that provision and so it is an appeal from his Honour’s decision.

HIS HONOUR:   Thank you.  I am obliged, Ms Maud. 

Fourthly, Federal Court matter VID898 of 2015, which is an appeal to the Full Federal Court from orders of his Honour Justice Tracey dismissing an application on appeal from the Administrative Appeals Tribunal; and, fifthly, Federal Circuit Court matter MLG737 of 2015, which is an application for sequestration order based on Ms Luck’s failure to comply with the bankruptcy notice.

In the interim, Ms Luck has applied by summons that Federal Court matter 898 of 2015 and Federal Circuit Court proceeding MLG735 of 2015 be stayed pending the hearing and determination for special leave to appeal from the judgment and orders of the Full Federal Court in Federal Court proceeding VID189 of 2015.

In brief substance, the basis of each of the applications for removal and the applications for stay is the commonality of constitutional and other issues which are said to arise in the special leave application and also in the matters the subject of application for removal.  Ms Luck has not appeared today and has asked that the matter be dealt with in her absence, and the first respondent, the University of Southern Queensland, and the other respondent, Chief Executive Officer of Centrelink, have endeavoured to accommodate her.

Thus, in order to minimise costs, counsel for University of Southern Queensland has informed me that his client is willing to seek an adjournment until 1 September 2015 of the Federal Circuit Court proceeding.  He has also submitted that his client would not oppose a stay of the other matters if it could be assured that Ms Luck’s application for removal in matter M49 and matter M53 of 2015 could be heard and determined before 3 August 2015.  Counsel for the Chief Executive Officer of Centrelink has informed me that the Chief Executive Officer opposes any application for stay made against her client.

In view of the intention of the University of Southern Queensland to seek an adjournment until 1 September 2015 of the Federal Circuit Court proceeding, I see no present need for a stay of that proceeding and, accordingly, the application for stay of it is refused.

Similarly, in relation to Federal Court proceeding 1158 of 2015, because it is not to be heard it is thought until late in August of 2015, I see no present need for a stay of the proceeding; for it may be that by then the application for special leave will have been heard and determined.  Accordingly, I refuse the application for stay of Federal Court proceeding 1158 of 2015.

In the case of each of the other matters of which a stay is sought, I am not persuaded on the basis of the material filed by Ms Luck in support of the application or otherwise of the need or justification for a stay at this stage of the proceeding and, accordingly, I shall order that the application for stay of each of the other matters be dismissed.

MS MAUD:   If the Court pleases.

MR PETRIE:   Your Honour, if I could just raise one very minor matter?

HIS HONOUR:   Yes, Mr Petrie.

MR PETRIE:   In your reasons you refer to proceeding VID1158 of 2015, it is in fact VID189 of 2015.

HIS HONOUR:   Well, just bear with me.

MR PETRIE:   I am instructed that proceeding VID1158 is the proceeding for which Ms Luck has sought special leave to this Court in the unrelated proceeding of M116 of 2014.

HIS HONOUR:   So it is VID198 of 2015, is it?

MR PETRIE:   VID189.

HIS HONOUR:   Thank you.

MR PETRIE:   Also, your Honour, I note at the commencement of your reasons you referred to the judgment of Justice Davies, also I think your Honour referred to 1158 when it is in fact VID61 of 2015.

HIS HONOUR:   Bear with me a moment, would you, please, because I am working off Ms Luck’s papers and it is a little bit confusing.  In matter M53 in her application for removal she seeks a stay of MLG737 which is the Federal Circuit Court proceeding.  In matter 49, that is to say matter M49, which is the only other one which I think concerns you, is it not ‑ ‑ ‑

MR PETRIE:   That is right.

HIS HONOUR:   ‑ ‑ ‑ she seeks a stay of the same thing, MLG737 of 2015, but also in the application itself as opposed to the summons ‑ as I say, the application for removal as opposed to the summons ‑ she does not appear to seek any stay of any proceeding.  But she does, I think, in the application in M49, does she not?

MR PETRIE:   That is right, your Honour.  In paragraph 3 on page 3 of that application ‑ ‑ ‑

HIS HONOUR:   That is in matter M53?

MR PETRIE:   In M49 also.

HIS HONOUR:   She seeks a stay there of the other proceeding, does she?

MR PETRIE:   That is right, your Honour.

HIS HONOUR:   All right.

MR PETRIE:   She refers to a number of proceedings there, but I think it can be inferred that the proceeding she seeks removed to this Court and stayed is ‑ ‑ ‑

HIS HONOUR:   Yes, she wants them all stayed ‑ ‑ ‑

MR PETRIE:   Yes.

HIS HONOUR:   ‑ ‑ ‑ but the one which is the appeal to the Full Federal Court from the order of Justice Davies is which of those?

MR PETRIE:   That is VID189 of 2015.

HIS HONOUR:   Yes, I see.  Thank you.  That is helpful, thank you.  Now, am I correct in thinking we have covered all of that for which there are applications today?

MR PETRIE:   That is right, your Honour.

HIS HONOUR:   Ms Maud, anything from you?

MS MAUD:   Your Honour, just a very minor thing.  It was difficult to follow all of the proceeding numbers, but I think also in relation to one of the matters concerning my client your Honour might have said proceeding 898 of 2015, it is 898 of 2008.

HIS HONOUR:   Thank you.

MS MAUD:   Just so that there is no uncertainty.

HIS HONOUR:   Which is the appeal from Justice Tracey’s refusal of appeal from the Administrative Appeals Tribunal on the directions hearing?

MS MAUD:   Yes, your Honour.

HIS HONOUR:   Thank you.

MS MAUD:   I just note that the summons in relation to proceeding M52, which concerns the underlying proceeding in the Full Federal Court in VID512, that summons refers to proceeding 898 but it is clear from the proceeding in which it is filed that she is intending to refer to VID512, but there is some confusion in the numbering in the documents.

HIS HONOUR:   It is hard to understand how that could come about.  Just a moment, matter number M52 ‑ ‑ ‑

MS MAUD:   Pardon me, your Honour, it is M51 where there is the error in the summons.

HIS HONOUR:   Not 52?

MS MAUD:   Yes.

HIS HONOUR:   She refers to 898 as you say, and you say that it ought be what?

MS MAUD:   VID512 of 2014.

HIS HONOUR:   Which is which?

MS MAUD:   That is the appeal which is also listed for this Thursday in relation to a grant of leave by her Honour Justice Mortimer in that matter.

HIS HONOUR:   From more orders of Justice Tracey, I take it?

MS MAUD:   Yes, your Honour, again dismissing the proceeding as incompetent.

HIS HONOUR:   Yes, thank you.

MS MAUD:   Otherwise, your Honour, we do seek an order for costs in relation to each of the matters concerning my clients.

HIS HONOUR:   I revoke the orders which I have said thus far, but I will make – and in lieu of them I make the following:

In each of matters M49 and M53 of 2015 it is ordered that the applicant’s application for stay pending the hearing and determination of her application for special leave to appeal from the orders of the Full Federal Court in Federal Court proceeding VID189 of 2015 is dismissed.

In each of matters M50, M51 and M52 of 2015 the applicant’s application for stay pending the hearing and determination of the same special leave application is dismissed with costs.

MS MAUD:   Thank you, your Honour.

HIS HONOUR:   In the case of matters M49 and matters M53, the costs are reserved.

MR PETRIE:   As the Court pleases.  Your Honour, again, just one minor thing, and I apologise to do this once more.

HIS HONOUR:   Not at all.

MR PETRIE:   Your Honour referred to proceeding VID189 as being the proceeding against which Ms Luck has sought special leave.  The special leave application is in fact in respect of proceeding VID1158.  Proceeding VID189 is the proceeding that she seeks removed to this Court.

HIS HONOUR:   Thank you very much.  I am obliged to counsel, thank you.

AT 2.49 PM THE MATTERS WERE ADJOURNED